Time to Rethink UAS in the US

By By E. Tazewell Ellett | April 22, 2014

The Federal Aviation Administration’s (FAA) treatment of very small UAS is creating a serious problem. While the agency deserves considerable credit for its hard work on projects to transition to the integration of UAS with manned aircraft in the civil airspace, the FAA has been a bit tone deaf when it comes to treatment of very small UAS vehicles where the operator desires to use the vehicle for commercial purposes, with no need or desire to “integrate” its vehicle in manned aircraft airspace.

Many prospective commercial operators of very small UAS vehicles desire to operate at very low altitudes, far from manned aircraft, airports, populated or noise-sensitive areas and, in some cases, away from any people at all. Most users target land that they own, lease or have permission from the owner to use, such as farmers and ranchers. While there is talk of softening of the FAA’s approach, as of this writing the agency has strictly forbidden any commercial use of very small UAS, with the exception of the commercial operation of the ScanEagle UAS, under a Restricted Category Type Certificate, by Conoco Phillips in the Arctic.

In stark contrast, since 1981 the FAA has permitted model aircraft operators to operate small (and large) UAS as “model aircraft” without any requirement for a specific FAA authorization of the operation, so long as they comply with conditions spelled out in FAA Advisory Circular 91-57 (Model Aircraft Operating Standards). Since at least 2004, the FAA has permitted federal, state and local government entities to operate small UAS through the issuance of FAA Certificates of Waiver or Authorization (COAs) that spell out various operational and safety-related conditions. If it would enable them to conduct commercial operations, many operators of very small UAS would be willing to operate subject to the same types of conditions set forth in this Advisory Circular or these COAs, using the exact same types of UAS.

Despite this, in a 2007 Notice of Policy on Unmanned Aircraft in the National Airspace System the FAA clarified that it prohibits commercial operations with small (or large) UAS, regardless of what conditions or limitations the operators are willing to comply with.

The FAA’s blanket, unwavering refusal to permit commercial operations of very small UAS outside the Arctic has led to growing antagonism against the FAA within the UAS community. This, in turn, has led to an ever-increasing willingness of operators of very small UAS to engage in commercial activities in defiance of the FAA’s blanket ban. The FAA has taken enforcement action against at least one such commercial operator, but in an appeal of that action to the National Transportation Safety Board (NTSB), Administrative Law Judge (ALJ) Patrick Geraghty decided against the FAA. While the FAA has appealed this ALJ decision to the full NTSB, the decision will almost certainly encourage others to defy the FAA’s ban.

The longer the FAA waits to provide a reasonable and workable method for permitting these types of commercial operations, the more operators will defy the ban, the stronger the level of defiance will become, and the more likely it will be that operators will refuse to comply with any FAA permitting process once it is developed. The only such permitting method that these operators see on the horizon at this point is the FAA’s rulemaking on small UAS operations, which appears to be a long way away.

The FAA Modernization and Reform Act of 2012 (FMRA) requires the agency to issue a final rule on small UAS operations by May 2015. But given the bureaucratic process that needs to be taken, it is highly unlikely that the congressionally mandated deadline will be met. While a delay in the issuance of the final rule will be a significant disappointment to those businesses that are abiding by the FAA’s ban on very small UAS commercial operations, for those who are already inclined to defy the ban, the delay will add fuel to the fire. The FAA needs to appreciate these realities and recognize that it’s in its interest to allow some commercial operations of very small UAS, even if only on a limited and conditioned basis, prior to the issuance of the final rule.

In the period before the final rule is issued, the FAA should develop a reasonable, efficient and timely method (or methods) for permitting very small UAS to operate for commercial purposes. The FAA has some very talented lawyers who are fully capable of developing such methods, and if they need ideas on methods and appropriate conditions, they should start by reviewing the agency’s own Model Aircraft Operating Standards Advisory Circular, and the hundreds of COAs the FAA has issued to dozens of governmental entities.

E. Tazewell Ellett is the practice administrator of the international law firm Hogan Lovell’s Aviation Group as well as a former chief counsel of the FAA, a former special counsel to the administrator of the FAA, and a former special assistant to a member of the NTSB.